Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20200605 DOCKET: C67613

Gillese, Tulloch and Jamal JJ.A.

BETWEEN Mark Couper Applicant (Appellant)

and

Rueter Scargall Bennett LLP Respondent (Respondent)

AND BETWEEN

Rueters LLP Applicant (Respondent)

and

Mark Couper Respondent (Appellant)

Counsel: Mark Couper, acting in person Fraser Dickson, for the respondents

Heard: In Writing

On appeal from the judgment of Justice Markus Koehnen of the Superior Court of Justice, dated November 12, 2019.

Reasons for Decision

[1] In this appeal, Mark Couper seeks to overturn a judgment ordering him to pay Rueters LLP approximately $422,000 for legal fees and disbursements, pre-judgment interest, and costs.

[2] For the reasons that follow, the appeal is dismissed.

Background in Brief

[3] In January 2011, Mr. Couper retained Rueter Scargall Bennett LLP, predecessor in interest to Reuters LLP (collectively “Rueters”), to represent him in a cross-border breach of contract case. Rueters was Mr. Couper’s third law firm to handle the litigation.

[4] Rueters provided Mr. Couper with legal services until March 2013. During that period, Rueters significantly advanced the case. Among other things, it readied the matter for pre-trial and trial, amended the pleadings, obtained additional disclosure, conducted examinations for discovery, attended several pre-trial and case conferences, and defeated a motion for summary judgment.

[5] However, in March 2013, Rueters terminated the lawyer-client relationship because Mr. Couper refused to follow its legal advice on important issues. The culminating incident occurred when Mr. Couper instructed Rueters to bring a summary judgment motion based on advice he had received from other lawyers and contrary to Reuters’ advice. Rueters refused to bring the summary judgment motion, which it viewed as unwise. Mr. Couper accepted the termination of the relationship and voluntarily retained new counsel to replace Rueters.

[6] At the time of termination, Mr. Couper had paid only $10,000 of the fees of $333,951.50 (plus HST) which he owed Rueters. He also owed Rueters overdue disbursements of $2,703.12.

[7] On April 16, 2013, the parties entered into a compromise compensation agreement (“CCA”) which resulted in a substantial fee reduction for Mr. Couper. The CCA reduced Rueters’ fees to $300,000 (before HST); it also reduced the original premium of 5% of the judgment obtained to 1%. Both sums were payable on judgment or settlement. The CCA further provided that Mr. Couper would pay the outstanding disbursements within three months. He did not make that payment.

[8] In April 2016, Mr. Couper succeeded at trial and obtained a judgment of almost $700,000. In July 2016, he was awarded costs of the trial of approximately $780,000.

[9] In August 2017, Rueters issued an account in accordance with the CCA. The account included the still-unpaid disbursements.

[10] Mr. Couper sought to have the account assessed but the Assessment Officer ruled he was without jurisdiction. Both parties then brought applications to determine appropriate fees for Rueters.

[11] The applications judge found in favour of Rueters on both applications. By judgment dated November 12, 2019, Mr. Couper was ordered to pay Rueters $351,402.75 plus prejudgment interest of $13,893.09 and costs of $57,548.46 (the “Judgment”).

[12] Mr. Couper appeals the Judgment on three grounds. First, he submits that there was a reasonable apprehension of bias on the part of the applications judge. This submission is largely based on the applications judge having presided over Mr. Couper’s motion opposing the confirmation of an assessment award regarding the fees of his trial counsel. Second, he submits that the applications judge erred in finding that Rueters had good reason to withdraw from its representation of him and did not require court approval for its withdrawal. Third, he submits that the applications judge erred in enforcing the CCA, which he contends is invalid.

No Reasonable Apprehension of Bias

[13] There is no conduct of the applications judge that can be seen as evidence of prejudgment or bias on his part. On the contrary, the record shows that the applications judge acted fairly, and with patience and integrity, throughout these proceedings.

[14] Further, the fact that the applications judge ruled against Mr. Couper in a related matter is inadequate to establish a reasonable apprehension of bias: Watt v. Beallor Beallor Burns Inc., 2004 ONCA 19821, at paras. 13-14.

Rueters had Good Reason to Withdraw and Court Approval was not Required

[15] Mr. Couper asserts that the applications judge erred in determining that Rueters had good reason to withdraw from the solicitor-client relationship because the litigation was at a critical stage, he was prejudiced by its withdrawal, and court approval was required.

[16] We reject this assertion and all of the arguments in support of it.

[17] Counsel cannot abandon their clients on the eve of trial or a similarly acute point in the litigation. However, when Rueters terminated the solicitor-client relationship, the litigation was not at a critical stage. There were no imminent court dates nor was there work that could not be dealt with efficiently by new counsel. In fact, Mr. Couper’s new counsel was able to take the matter to trial quickly and was successful, obtaining judgment in his favour.

[18] Nor was Mr. Couper prejudiced by Rueters’ withdrawal. In rejecting Mr. Couper’s claim of prejudice flowing from that withdrawal, the applications judge found that Rueters had no liability for any costs arising from the withdrawal because Mr. Couper was “the author of his own misfortune”. He found that Mr. Couper was responsible for the material breakdown in the relationship for reasons that included his insistence that Rueters pursue the summary judgment motion, a motion that could have been strategically and financially disastrous for him. We agree with the applications judge.

[19] As for Mr. Couper’s contention that court approval was required, we begin by noting that Mr. Couper agreed that Rueters could remove itself from the record. Thus, in the circumstances of this case, there was no need for Rueters to obtain court approval.

[20] In any event, we endorse the applications judge’s rejection of Mr. Couper’s after-the-fact explanation for why his agreement was based on a misunderstanding. We also agree with the applications judge that had Rueters made such an application, it would have obtained court approval to remove itself from the record. As the applications judge found and is described briefly above, Mr. Couper was responsible for the material breakdown in the solicitor-client relationship.

[21] We conclude on this issue by noting that the findings of the applications judge show that going to court for such approval would have been ill-advised and both parties knew that. It was clearly in Mr. Couper’s best interests that the change in counsel be accomplished as quickly, inexpensively, discreetly, and efficiently as possible. That is precisely what transpired.

The CCA was Valid

[22] On this appeal, Mr. Couper has advanced a new issue, namely, that both his initial retainer agreement with Rueters and the CCA are invalid because they fail to comply with the requirements of Contingency Fee Agreements, O. Reg 195/04 to the Solicitors Act, R.S.O. 1990, c. S. 15 (the “Regulation”). He did not advance this issue on the Applications. Rather, he argued that Rueters had breached the agreements.

[23] As Mr. Couper did not raise the validity of the agreements below, he cannot raise it on appeal. This court has repeatedly explained the general rule that appellate courts will not entertain entirely new issues on appeal. See, for example, Kaiman v. Graham, 2009 ONCA 77, 245 O.A.C. 130, at para. 18, and Chuang v. Toyota Canada Inc., 2016 ONCA 852, at para. 4.

[24] In any event, even if the CCA were found not to comply with the Regulation, we agree with the applications judge’s implicit finding that the CCA was fair and reasonable. Therefore, it was enforceable.

Disposition

[25] The appeal is dismissed with costs to Rueters. If the parties are unable to agree on the quantum of those costs, they may make written submissions on that matter, to a maximum of three pages in length, such submissions to be received by this court no later than ten days from the date of release of these reasons.

[26] Further, this court affirms the applications judge’s order that Mr. Couper’s New Jersey counsel, Snellings Law, shall pay to Rueters forthwith, from the funds that it is holding in escrow, all amounts to which Rueters is entitled pursuant to the Judgment.

“E.E. Gillese J.A.”

“M. Tulloch J.A.”

“M. Jamal J.A.”